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A COMPARATIVE ANALYSIS: THE TWO-FINGER TEST IN INDIA AND U.S.A BY:- MISS. MRUNALI BALASAHEB KHAVALE
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COMPARATIVE ANALYSIS: THE TWO-FINGER TEST IN INDIA AND U.S.A
AUTHORED BY:-
MISS. MRUNALI BALASAHEB KHAVALE
Class: LL.M
1st year semester: II Roll.no:62
SAVITRIBAI
PHULE PUNE UNIVERSITY
P.E.S. MODERN
LAW COLLEGE PUNE
Abstract :
This research article delves into the concept of bodily autonomy and its
connection to the outlawed practice
of the two-finger test in India and the reasons for its absence in the USA. The
two-finger test, a discredited virginity assessment with no scientific basis,
has been a violation of bodily
autonomy for sexual assault survivors. This research aims to highlight the crucial link between bodily autonomy and
ending the degrading practice of the two-finger test. The two-finger test is invasive and unscientific practise
conducted on female rape survivors to assess their sexual history, has been a
contentious issue in India for decades. This practice, rooted in outdated
and harmful stereotypes, has been repeatedly condemned by medical
experts, human rights organizations, and the Indian judiciary. Despite
these strong condemnations, the two-finger test has persisted, re-traumatizing countless victims
and reinforcing harmful gender
norms. In a landmark decision in 2013, the Supreme Court of India declared the two-finger test
unconstitutional, highlighting its violation of the right to privacy, bodily integrity, and dignity of rape
survivors. This ruling marked a significant step towards protecting the rights of survivors and ensuring that justice is
served in cases of sexual violence. However,
challenges remain in ensuring that the two-finger test is eradicated and that
survivors receive appropriate medical
care and support. This paper explores the history, context, and implications of the two-finger test in
India, focusing on the Supreme Court's ruling and the ongoing efforts to eliminate this harmful practice.
KEYWORDS : two finger test , rape cases , right to privacy of women.
Introduction :
The
two-finger test, also known as the virginity test, is a medically outdated and
inaccurate procedure that has been
widely condemned by human rights groups and medical professionals. The test involves inserting two fingers into the vagina to assess the hymen, a
thin membrane that is often ruptured
during sexual activity, even non-penetrative sexual activity. The test is based on the false belief that an intact hymen is indicative
of virginity.
In addition
to prohibiting the two-finger test,
there are a number of other things
that can be done to prevent and address sexual violence
these include :
Comprehensive sex
education: Sex education should
teach
young
people
about
consent, healthy relationships, and how to protect themselves from sexual violence.
Support
for survivors: Survivors of sexual violence need access to support services,
such as Counselling and medical care. Perpetrators of sexual
violence must be held accountable
for their actions. This includes
prosecution and appropriate punishment .Many girls are raped, and they never even come forward to report it
for fear of being defamed. Rapists occasionally utilize blackmail as a tactic, and their victims
keep this information to themselves out of fear. Additionally,
girls occasionally succumb to familial pressure and keep the issue quiet out of concern for defamation. Crimes are
increasing in severity these days, ranging from raping an 8-month-old girl to raping an 84-year-old mother. However, rape victims also have certain
rights under our Indian
laws.1
History Of Two Finger Test :
Tests for virginity are not limited to Indian or rape survivors in a
medical context. There is ample historical and geographical evidence
of women having been put through various
virginity tests, as historian Hanne Blank points out in her book Virgin:
The Untouched History. These tests
are conducted worldwide, but their employment When the British immigration authorities feared an Indian application could be married
and was entering
the nation without
a visa under the pretense of marrying their fiancé, they tested the
applicant's virginity on the ladies
from India during the 1970s. Virginity tests are still used today for a variety
of reasons, including preventing
school-age girls from having sex before marriage, aiding women in their job applications, and testing female protestors (Olson and García-Moreno 2017, Behrens 2015).stems from a patriarchal idea that women's
bodies and behaviour
should be subjugated in social, political, and economic domains, as well as a
fixation with women's virginity. In India, women frequently have to show they
are virgins before being married, which is a deeply casteist custom. In order to preserve caste systems, it is
customary for women to bleed after mating in order to demonstrate their chastity. This practice promotes
intra-caste sexual interactions and subsequent procreation. Media attention was drawn to this Kanjarbhat community ritual a few years ago, as young people from the
community protested the 400- year-old custom.
However, what appears
to be a custom unique
to a few Indian communities
1Saibu Evade , Doctrine of two-finger test, https://www.legalserviceindia.com/legal/article-9725-doctrine-of- the-two-finger-test.html Last seen 11/04/2024
actually
reflects the deeply ingrained essence
of patriarchy and caste. Even young boys and girls in Mumbai have similar ideas about the value of a "wife's virginity".2
Meaning Of Two-Finger Test :
In order to comprehend the need for action against
this practice, we must first have an understanding of rape, the predicament
of rape victims, and the dehumanizing nature of subjecting a survivor to this test in order to confirm the same.
RAPE – A man is said to commit “rape”
who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:—
Ø
Against her will.
Ø
Without her consent.
Ø
With
her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Ø
With
her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.
Ø
With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
Ø
With
or without her consent, when she is under sixteen years of age. Explanation.— Penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape.3
As
we can see, rape is a heinous act, which makes it a more serious crime that murder. According to Justice Krishna Iyer, A murderer kills the body
whereas a rapist kills the soul.( Rafiq
Vs State of U.P.) This explains the gravity of the need to develop measures for
the protection of the victims from
the aftermath of the incident, be it physical or mental. In another case of State of Punjab
v. Ramdev Singh,
court dealt with the issue
and held that rape is
2 Abraham, L. (2001) Gender differences and cultural constructions in youth sexuality
in urban India.’
https://www.tandfonline.com/doi/abs/10.1080/00856400108723441 Last seen 11/04/2024
3 Section 375, The Indian Penal
Code ,1860
violative
of victim’s fundamental right under Article 21 of the Constitution. So, the
courts should deal with such cases sternly
and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion
on the right of privacy and sanctity of a woman. It is
a serious blow to her supreme honour and offends her self-esteem and dignity as
well. It degrades and humiliates the
victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A
rapist not only causes physical injuries, but leaves behind a scar on the most cherished
position of a woman, i.e. her
dignity, honour, reputation and
chastity. Rape is not only an offence against the person of a woman, rather a
crime against the entire society. It
is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article
21 of the Constitution. Article 21 of the constitution says that – No person shall be deprived of his life or personal
liberty except according to procedure established by law.
The
per vaginum examination, colloquially known as the two-finger test, has been
used in rape cases to check for signs
of sexual intercourse, especially to establish if the victim is ‘habituated’ to sexual intercourse. On
October
31,
2022,
the
Supreme
Court
in State of Jharkhand
vs Shailendra Kumar Rai, reiterated the ban on the two-finger test, adding onto dozens of similar judgements. In the
judgement, the court observed that the test is scientifically inaccurate, patriarchal, and an affront to
the dignity of sexually assaulted women. The court further underlined that “the probative value of a woman’s
testimony does not depend on her sexual
history”. The court also directed the Union and state governments to ensure
that medical professionals who continue to conduct the test be held guilty of misconduct. 4
This
test is used to refute the veracity of the rape survivor's allegations because it allows for the
medical report of past, regular sexual activity. The medical evidence of past,
regular sexual activity is frequently used to cast doubt on the veracity
of the rape victim's allegations, suggesting that the victim may have lied, that the rape
may not have caused full harm, or that the victim is morally improper or does not deserve justice.
Ø Methodology for scientific validity:
The Two-Finger test lacks scientific validity because it is based
on an antiquated theory that
the hymen is intact or not. The test involves inserting two fingers into the vagina, and research
4 Shreya Basak , Explained: What Is Two-Finger Test On Rape Survivors And Why Has SC Banned
The 'Unscientific' Practice, https://www.outlookindia.com/national/explained-what-is-two-finger-test-on-rape- survivors-and-why-has-sc-banned-the-unscientific-practice-news-234114 Last seen 11/04/2024
has shown that even in cases of young girls being raped, the hymen is so deeply ingrained that it
remains intact even after penetration. Additionally, research has shown that
the hymen can break during play, exercise,
and other physical
activity that stimulates
the vagina.
Ø Challenge with the Two-Finger
Exam:
The
two-finger test measures how loose a
woman's vagina is; this laxity
varies depending on her psychological
state and how tense her environment is. The test also establishes a history of sexual activity, which is used to determine whether to reject
an appeal from the rape victim
Even after going through the horrifying experience of being raped, the test
violates a person's privacy and dignity
on a moral and ethical
level. She is nevertheless put through the test of insertion and her allegation is called into doubt in court.
Ø Violation of a person's privacy, dignity, and integrity:
The freedom to live in privacy and with dignity is guaranteed by Article
21 of our Indian constitution. Rape
is a heinous crime for which there are no adequate words; the victim suffers from physical and psychological trauma as
a result. The victim is then put through a test to verify the veracity
of her claims, which violates
her right to privacy in two main ways:
1. Even after such a traumatic incident,
her claims and words regarding the crime are questioned. She is tested for
habitual sexual activity, and her personal life and activities are questioned based on this test. influencing her activities and personal
life.
2. According to this test, if a woman
engages in sexual activity frequently, her permission to the sexual activity is questioned, her
individual dignity and choices are questioned, and the rape charges are
not as valid or would not
be disputed.5
Landmark Cases Related to Prohibiting Two-Finger Test:
Despite the lack of scientific evidence and the potential for harm, the
two-finger test has been used for
decades in India. The Supreme Court's ruling was a landmark decision that helped
to protect the rights of rape
survivors in India. However, the two-finger test is still used in some parts of the world, and it is important to
continue to raise awareness about the dangers of this harmful practice.
5 Tushar Jain ,Empowering women against violence,
https://sayfty.com/do-you-know-about-the-two-finger-test/ Last seen 11/04/2024
The Supreme Court ruled in Narayanamma (Kum) v. State of Karnataka & Ors (1994)that the “fact of admission of two fingers and the hymen rupture does not give a clear indication that prosecutrix is habitual to sexual intercourse”. Whether the
hymen stood ruptured much earlier or carried
an old rip is a matter for the doctor's opinion.
Since
it would also depend on the size of the fingers inserted, the prosecutrix could
not be held adversely affected by the factum of
admittance of two fingers.
Given that such problems undoubtedly
pertain to the hymen, the doctor must express
his clear view regarding
whether the condition was painful and bleeding upon touch.
The State of Uttar Pradesh v. Munshi (2004)
case expressed their sorrow and concluded that even if the rape victim had
previously engaged in sexual activity, this could not be the deciding factor. Conversely, it is still unclear
if the accused sexually assaulted the victim at the time the complaint was made. Even if the victim has already lost her virginity,
that does not, in
any case, mean that anyone can rape her. The accused, not the victim, was the
one on trial. Therefore, in a case of rape, it is completely irrelevant whether or not the victim is a promiscuous
person. Because she is not a helpless object or target for sexual abuse by
anyone, even a lady of easy virtue
has the right to decline to submit to sexual relations with anyone. A prosecutrix is seen more highly than an
injured witness since the former suffers physical harm while the latter has psychological and emotional distress.
State of Haryana v. Lilu Rajesh and Anr
(2013) Raj Bala, the prosecutrix, was examined by Dr. Malti Gupta, who testified
that there was no visible sign of harm on any area of her body. It is not impossible to rule out the
likelihood that the prosecutrix has a history of sexual activity. No blood was seen. Because of this, the prosecutrix's
claim that she was under 16 years old, single,
and had never had intercourse with anybody could not be trusted in this
particular factual scenario. Mr. J.P. Singh has actually
debated the two-finger test quite a bit. Fairly acknowledging
that, should she have been a minor, it would not have mattered whether or not she had a history of sexual activity
when determining whether
or not she gave consent.
Regarding the two-finger test, the court needs to give it careful
thought because there is a need for
forensic examinations of rape survivors to be conducted and interpreted in
accordance with established standards.
The
erroneous premise that a woman who is sexually active cannot be raped is the
basis of the so-called test. Nothing
could be further from the truth: whether or not the accused raped the woman depends entirely on her past sexual behaviour. Furthermore, a woman's sexual past has
Shailendra Kumar Rai v. State of Jharkhand
(2022) The deceased "may have engaged in intercourse prior to the date of the alleged crime,"
according to medical examiner Dr. Minu Mukherjee,
and "the admission of two fingers in her vagina meant that she was habituated
to sexual intercourse."
"This
Court has consistently condemned the application of this intrusive and
regressive criteria in rape and sexual assault cases. This "test" has no scientific foundation
and does not support or refute
rape allegations. Rather, it is an insult to
their dignity and re-victimizes and re- traumatizes
women who may have experienced sexual assault. Pre-vaginal testing, sometimes known as the "two-finger test," is not appropriate6
The hon’ble
Supreme Court also gave some directions to the Government :
Ensuring that all public and private hospitals receive the guidelines
created by the Ministry of Health and Family Welfare;
Hold workshops
for medical professionals to explain the proper approach
to take when assessing victims of sexual
assault and rape; and
To
ensure that the “two-finger test” or per
vaginum examination is not one of
the methods to be used while
assessing survivors of sexual assault and rape, review the curriculum in
medical schools.
Two Finger Test in U.S.A:
The two-finger test is not a recognized medical procedure in the United
States. It has been widely criticized by medical professionals for being inaccurate and insensitive.
6 K.Manoggnya Reddy, Law Insider,https://www.lawinsider.in/columns/landmark-judgements-that-shaped-the- rape-laws-in-india Last seen 11/04/2024
There
are no federal laws in the United States that specifically prohibit the
two-finger test. However, some states
have laws that address the issue. For example, California has a law that prohibits
the use of the two-finger test in sexual assault examinations.
The American College of
Obstetricians and Gynaecologists (ACOG) and the International Association of Forensic Nurses (IAFN) both recommend against the
use of the two-finger test. The ACOG
states that the virginity of a woman cannot be determined by a physical exam.
The IAFN states that the two-finger
test is not a reliable indicator of whether a woman has been sexually
active.
Here's why the two-finger test isn't used in the USA:
Ø Medically irrelevant: The test relies on the mistaken belief that the hymen proves virginity, which isn't true. The hymen can
break through many activities besides sexual
intercourse.
Ø Focus on evidence: Sexual assault examinations in the US focus on collecting forensic evidence
to identify the perpetrator and provide medical care to the survivor.
Ø Survivor-cantered approach: The two-finger test can be re-traumatizing for survivors. US medical practices
prioritize a supportive and dignified approach
to examinations.
Conclusion:
In recent years, there has been a growing movement to prohibit the
two-finger test in rape cases. In
2012, the United Nations Committee on the Elimination of Discrimination Against
Women (CEDAW) called for the
abolition of the two-finger test, stating that it is "a form of torture
and cruel, inhuman or degrading
treatment.7 The latest
ruling is noteworthy because it stipulates that anyone caught giving a victim of rape or penetration sexual
assault a two-finger test will be found guilty of misconduct. This
initiates the process of addressing the impunity of medical practitioners who carry out this activity.
Highlighting
that "the two-finger test is based on the incorrect assumption that a
sexually active woman cannot be
raped," the verdict was equally important. When evaluating whether the accused
assaulted the victim, her past sexual behaviour
is completely unimportant. It makes it
7 R. Vinoth Kanna ,Two-finger test , https://lawbhoomi.com/two-finger-test/ Last seen 11/04/2024
clear
that survivors will no longer be subjected to the frequent and ongoing attacks
on their character that occur during
trials—especially when such attacks are motivated by their past sexual relationships.
Thus,
in view of the above cases, undoubtedly, the two- finger test and its
interpretation violates the right of rape survivors to privacy, physical
and mental integrity
and dignity. This test, even if the report is affirmative, cannot Ipso facto, be given rise to presumption of consent.
Article Information
A COMPARATIVE ANALYSIS: THE TWO-FINGER TEST IN INDIA AND U.S.A BY:- MISS. MRUNALI BALASAHEB KHAVALE
Authors: MISS. MRUNALI BALASAHEB KHAVALE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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